CONCURRING OPINION OF JUDGE DIEGO GARCÍA-SAYÁN

TO THE ORDER ON MONITORING COMPLIANCE WITH JUDGMENT

IN THECASE OF THE SARAMAKA PEOPLE V. SURINAME

OF NOVEMBER 23, 2011

  1. The monitoring of compliance with its own Judgments is one of the Inter-American Court of Human Right’smost important powers for the protection of human rights. The Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the Court,” or “the Tribunal”) has exercised this power since its first decisions, and it is an essential tool for ensuring compliance therewith. The stage of monitoring compliance with judgments has become a central aspect of the protection of the human rights of the people of the Americas. This is not only because it guarantees, in the specific case in which the State is a party, “that the injured party [is] ensured the enjoyment of his right or freedom that was violated[;] that the consequences of the measure or situation that constituted the breach of such right or freedom [are] remedied[;] and that fair compensation [is] paid to the injured party,”[1] but also that a judgment’seffet utile is spread to the other State parties, thus promoting the full effectiveness of human rights.
  1. An evaluation of the procedure for monitoring compliance with the judgments issued by the Court, reinforced by hearings held for that purpose, leads me to declare that this tool has become a vital and successful mechanism.[2] By means of this mechanism, a new dynamic has been embedded into this stage, facilitating and promoting significant advances in the implementation of measures to comply with that ordered by the Court in its decisions, and generating participatory spaces for dialogue and agreement between State authorities and the victims or their representatives. This new dynamic has been regarded in a very positive light by the different actors involved in cases before the Court. In relation to the above, it is worth noting that the General Assembly of the Organization of American Stateshas repeatedly mentioned, since 2009, “the important and constructive practice begun by the Inter-American Court of Human Rights to hold closed hearings on the monitoring of compliance with its judgments, and the outcomes thereof.”[3] In addition, it has encouraged “[t]he hearings held to monitor compliance with judgments as one of the most effective mechanisms to promote compliance [therewith].”[4]
  1. As an illustration of the importance of this faculty of the Court, it is worth recalling the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. In this case, as a consequence of a private hearing held and a meeting for dialogue at the Court’s seat, the State assumed a series of commitments aimed at executing the only operative paragraph of the Judgment pending compliance. This resulted in full compliance with the Judgment and the closing of the case seven months after the hearing, with the demarcation and titling of over 70,000 hectares, in conformity with the Order issued by the Court on April 3, 2009.[5] Similarly, in the case of Valle Jaramillo v. Colombia, during the private hearing, the State and the representatives came together for dialogue and agreement towards the implementation of the reparation measure of granting of a scholarship to study or receive training in a trade, which led less than a month after to the joint presentation of an agreement for alternative compliance with the measure, agreement that was subsequently deemed admissible by the Court.[6] In addition, after the private hearing held in the case of Vargas Areco v. Paraguay, the Court recognized, with regard to the obligation to pay interest on the compensation for pecuniary and non-pecuniary damagesand reimbursement of costs and expenses paid after the date due, “the will[ingness] of the parties to achieve progress on this point based on an agreement, and [indicated that it awaited] updated information on efforts and results achievedregarding the [State’s] compliance with this aspect of the reparation.”[7]
  1. The confirmation of the occurrence of human rights violations by the Inter-American Court, through the exercise of its contentious jurisdiction, has led the Court to order, in conformity with Article 63 of the American Convention on Human Rights (hereinafter the “American Convention” or the “Convention”), different types of measures that tend to satisfy the idea of integral reparation. This includes not only pecuniary compensation, but also measures of a different nature seeking restitution, rehabilitation, satisfaction, and non-repetition of the proven violations. The implementation of these measures entails, as indicated, a gradual process over time of a complex nature, in which,in many cases, all State bodies need to participate. This is because in the implementation of reparation measures, different organs and institutions of the States–whether central or federal and at different levels- as well as the different branches established in their political constitutions can be involved.
  1. As previously mentioned, due to its complex nature, this compliance process cannot be analyzed in an isolated manner or under abstract academic or mathematical logic, or by turning deadlines into objectives in and of themselves, but taking into account the different variables and factors that lead to full compliance with a Judgment issued by the Inter-American Court. For example, in relation to judicial investigation proceedings and, if applicable,the subsequent punishment of gross human rights violations (where the rights of third parties are involved), or to those reparations that require legal amendments or the design and implementation of public policies, these are complex processes in which it is essential to verify their general purpose and to follow them.
  1. This reality does not imply that States can shield themselves with the slow pace of domestic institutional proceedings or complex institutional tangles in order to avoid compliance with that ordered. The Court’s experience has demonstrated that compliance with these reparations entails a process in which the Court’s persistence in the meticulous job of monitoring implementation of reparation measures ordered is of utmost importance. Monitoring compliance with the reparation measures ordered in the judgments issued by the Inter-American Court, as an area of jurisdiction inherent to its judicial function, is a fundamental stage for achieving the effet utile of its decisions in the domestic sphere. Conversely, the search for comprehensive reparation can become diluted if there is no adequate, timely, effective, and rigorous supervision. For this reason, it has become necessary to adopt specific procedures and appropriate mechanisms that allow the Court to exercise in an increasingly rigorous manner its function –and judicial duty- of monitoring in accordance with the mandate established in the American Convention, its Statute and Rules of Procedure, and at the same time, of guiding and supporting the States and the victims of human rights violations in obtaining full compliance with its orders in the most prompt and agile manner.
  1. Article 65 of the American Convention is clear in ordering the Court to submit to consideration of the General Assembly of the Organization of American States a report on its work during the previous year, indicating the cases in which a State has not complied with its decisions. This does not require much commentary or analysis, asthe content of this provision is evident from its text. What is important to highlight is that in order to be able to seriously comply with this mandate and to not abdicate the Court’s function of guaranteeing compliance with its decisions, the stage of monitoring compliance with the judgment allows the Inter-American Court, precisely, to assess the degree of compliance with the reparations ordered and determine the time, if applicable, when the jurisdiction of the Court may be considered exhausted and thus be transferred to the General Assembly. Similarly, the monitoring of compliance with judgments and the active workof the Court in this areaallow the Tribunal, precisely, and as has been regularly done, to present before the General Assembly each year, through its Annual Report on its work, the status of compliance with its judgments.
  1. In this regard, the application of Article 65 of the Convention, to the effect of specifically pointing out a State to the General Assembly so that the latter may act in its capacity as collective guarantor of the Inter-American system, is limited to those exceptional cases in which a State’s effective reluctance or refusal to comply with a judgment is proven. This situation has occurred in specific cases and under very definite circumstances throughout the history of the Inter-American Court. Only when faced with a State’s express refusal to fully or partially comply with that ordered, in addition to the failure of all means of supervision possible, has the Court resorted to the application of Article 65 of the American Convention, and it has understood that in such cases, it is not appropriate to continue requesting that State to provide information regarding its compliance with the judgment under consideration.[8] In my opinion, in this case, this threshold has not been met.

Diego García-Sayán

Judge

Pablo Saavedra Alessandri

Registrar

1

[1]Article 63 of the American Convention on Human Rights.

[2]The unchanging practice of the Court since 1989 has been to request reports from the State. Generally, this begins with a first report that must be submitted to the Court within a year from the date on which the Judgment is served. Subsequently, the observations of the victims or their representatives and of the Inter-American Commission on Human Rights are requested. Once the necessary information is obtained, the Court issues an Order evaluating the degree of process in compliance with its orders and ruling that conducive to moving forth with the measures that are still pending compliance. Even though this process was carried out mainly in writing, as of 2007, the Court implemented an innovating mechanism that consists of holding hearings for monitoring compliance with the judgments. At these hearings the parties have the opportunity of directly hearing their positions and reacting to them, and the Court has the possibility of “sugg[esting] alternativ[e][solutions], call[ing] […] attention [to] non-compliance [due to a] lack of willingness, promo[ting] the preparation of compliance schedules for the parties involved […], and even [offering] its premises for the parties to hold conversations, which, on many occasions, are very difficult to arrange with the State involved.” (Cf. Annual Report of the Inter-American Court of Human Rights for 2010, page 10). This practice was consolidated in Article 69(3) of the current Rules of Procedure, which expressly establishes the possibility that the Court may convene a hearing when it deems pertinent. (Cf. Rules of Procedure approved by the Inter-American Court in its LXXXV Regular Period of Sessions held from November 16 to 28, 2009).

[3]General Assembly, Resolution AG/RES. 2500 (XXXIX-O/09) approved in the fourth plenary session held on June 4, 2009, entitled “Observations and Recommendations on the Annual Report of the Inter-American Court of Human Rights,” pg 3; Resolution AG/RES. 2587 (XL-O/10) approved in the fourth plenary session held on June 8, 2010, entitled “Observations and Recommendations on the Annual Report of the Inter-American Court of Human Rights,” pg. 2, and Resolution AG/RES. 2652 (XLI-O/11) approved in the fourth plenary session held on June 7, 2011, entitled “Observations and Recommendations on the Annual Report of the Inter-American Court of Human Rights,” para. 6.

[4]General Assembly, Resolution AG/RES. 2500 (XXXIX-O/09), supra note 3, operative paragraph five; Resolution AG/RES. 2587 (XL-O/10), supra note 3, operative paragraph five, and Resolution AG/RES. 2652 (XLI-O/11), supra note 3, operative paragraph six.

[5]Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of April 3, 2009, Operative Paragraphs 1 and 2.

[6]Cf. Case of Valle Jaramillo v. Colombia. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of February 28, 2011, Considering clauses 34 to 37; and Case of Valle Jaramillo v. Colombia. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of May 15, 2011, Considering clauses 6 to 11.

[7]Cf. Case of Vargas Areco v. Paraguay. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of November 24, 2010, Considering clause 39.

[8]Order of the Inter-American Court of Human Rights of June 29, 2005. Monitoring Compliance with Judgments (Applicability of Article 65 of the American Convention on Human Rights).